Within the last month, courts have taken steps to protect communications made via social media. For example, in Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (D.N.J. Aug 20, 2013), which we reported on here, the United States District Court for the District of New Jersey held that private Facebook posts are protected under the Stored Communications Act. On the heels of that decision, the Fourth Circuit Court of Appeals in Bland v. Roberts, 12-1671 (4th Cir. Sept. 18, 2013) overturned a district court decision that had held that public employees’ Facebook “Likes” were not protected speech under the First Amendment. (Remember of course, that public employees, unlike the employees of private businesses, have limited First Amendment rights to speak out on matters of public concern.)
The Bland lawsuit was brought by six city employees who had been terminated from employment for supporting an opposing candidate in an upcoming sheriff’s election. One way the employees showed their support for the candidate was by “liking” his Facebook page. The lower court found that this click of the mouse was not protected by the First Amendment and threw out the plaintiffs’ claims, but the Fourth Circuit reversed.
In reversing the District Court, the Fourth Circuit noted that other courts have granted First Amendment protection to posts written on Facebook. Unlike the earlier cases involving written speech published on social media, the “speech” here was the simple mouse click indicating that the user “Liked” a post. There were no words of clarification or words of support…nothing. In holding that this type of action constituted speech protected by the First Amendment, the Fourth Circuit stated:
On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement.… That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
The Court went on to describe the action as "the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”
Takeways for Public Employers.
The Fourth Circuit’s decision in Bland (which includes North Carolina, South Carolina, Virginia and West Virginia) strongly suggests that public employees’ free-speech right extends not just to liking a Facebook page or post, but by extension, to such social media activity as “re-tweeting” or clicking the “Favorite” icon on a tweet, clicking the “Thumbs up” icon on LinkedIn, clicking the “?” icon on Vine, or clicking the “♥ LIKE” icon on Instagram. Although the Bland decision is “The Law” only in the states under its jurisdiction (North Carolina, South Carolina, Virginia and West Virginia), the court’s reasoning is sound and likely to be followed in other jurisdictions.
Takeways for Private Employers.
Private sector employers have seen a similar issue play out before the National Labor Relations Board where an employee’s Facebook post about terms or conditions of employment has been considered protected activity under the National Labor Relations Act based largely on whether the post generated co-workers’ positive comments in response and “Likes.” Therefore, private sector employers likely can expect that any discipline to the original poster and those who “liked” the post would be found to be an unfair labor practice under those circumstances. Similarly, clicking “Like” in response to a co-worker’s complaint on Facebook about race discrimination in the workplace likely would be considered protected activity in the Title VII context.
As any regular social media user will quickly recognize, their use of symbolic speech (such as the Facebook “Like” icon, the Twitter “Retweet” and “Favorite” icon, the LinkedIn “Thumbs Up” icon, Vine’s “?” icon, and Instagram’s “♥ LIKE” icon) does not always mean they approve of or support the statement, position, business, candidate, etc. at issue. These icon buttons that necessarily come with images of approval, i.e., the ♥, the ?, the thumbs up and/or the “Like”, are the only options available on these social media applications. And while many social media users (including me) have looked for a “Dislike” icon button, there isn’t one.
So, while a user who clicks one of these buttons may really be clicking as a show of support or approval, others may not like or view the referenced comment, picture, or video favorably. Rather, many users “like, “favorite,” “thumbs up” or “?” to track a conversation or video to see what others have to say about it, to save it for easier reference later, and for other reasons, none of which necessarily include supporting the actual statement or post being made. In fact, many people “retweet” others’ tweets to broadcast to others what they view to be an outlandish or even vile tweet. Employers, whether public or private, therefore should not be so quick to pull the trigger on a termination based solely on this kind of symbolic speech on social media.
And sorry for all those interested, but none of the cases discussed in this post can be used to stop those annoying Farmville or Candy Crush invitations.